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7-1-2007
Water Wars -- Will Georgia, Alabama and Florida
Ever Agree?
Peter A. Appel
University of Georgia School of Law, [email protected]
Repository Citation
Appel, Peter A., "Water Wars -- Will Georgia, Alabama and Florida Ever Agree?" (2007). Popular Media. Paper 5.
http://digitalcommons.law.uga.edu/fac_pm/5
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[email protected].
Will Georgia, Alabama and Florida ever agree?
By Associate Professor Peter A. Appel
The Chattahoochee River runs through the city of Atlanta, one of the
South’s largest cities, which has a high demand for water.
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The states of Georgia, Alabama and Florida have fought over the last few decades about important
subjects — SEC championships and economic development are just two such fights. However,
disputes over water have, in recent years, made up the most important of these controversies.
or
over
a
decade, these
three states have
battled over the
resources
of
the AlabamaC o o s a Tallapoosa (ACT) and
Apalachicola-Chattahoochee-Flint (ACF)
river basins. Despite adopting congressionally-approved interstate compacts – which
were essentially agreements to agree – the
three states have never reached final accords
over these water bodies.
Many commentators believe this dispute
will inevitably wind up before the U.S.
Supreme Court.
What they overlook, however, is how this
controversy began, the different forums in
which it has been fought and the various
ways it could be resolved in the interest of all
of the parties.
The basis of the controversy among these
three southeastern states lies in the different
interests each of the states has in the uses
of water in the ACT and ACF basins, the
mechanical structure of each of the basins
and the fact that each of the states operates by some version of the riparian rights
doctrine.
This article will provide an overview of
how the dispute originally arose, the different
means of resolving it and what some of the
potential outcomes of it might be depending
on the means chosen for resolution.
The common misconception that, in the
end, the U.S. Supreme Court must resolve
this water war ignores the strong evidence
that suggests that other means and probably
other branches of the federal government
will end the dispute.
Mechanical and legal structure of
the basins
The ACT and ACF river basins both drain
into the Gulf of Mexico, the ACT at Mobile
and the ACF into Apalachicola Bay off the
Florida panhandle.
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Both river basins have a great deal of federal involvement in the management of the
flow of the rivers.
The most obvious involvement of the federal government is through the U.S. Army
Corps of Engineers.
The corps has historically managed navigation on internal waterways in the United
States, and the corps’ civil works projects
have historically included removing obstacles
from navigable waters, dredging rivers and
harbors to promote navigation, building and
maintaining levees, and building and managing dams for the purposes of promoting
navigation, creating hydroelectric power and
controlling floods.
In addition, in 1958, Congress authorized
all corps projects to supply municipal drinking water consistent with their other authorized purposes.
Both the ACT and ACF basins have a
number of dams owned and operated by
the corps.
The most prominent of these in the ACT
basin is the Allatoona Dam, which forms
Lake Allatoona; in the ACF, Buford Dam
forms Lake Lanier.
Although there are certainly more dams
along each of the basins, lakes Lanier and
Allatoona form significant sources of municipal water supply for the Atlanta metropolitan area.
As the region’s most populated area, the
Atlanta area has a high demand for water.
The situation is further complicated
because Atlanta is the largest metropolitan
area that relies on the smallest water resources in the country.
Lakes Lanier and Allatoona are also popular recreation areas for people in the Atlanta
region, which means that Atlantans often
want water in Lake Lanier on the weekend
for recreation and water from Lake Lanier for
their households during the week.
The management of these two dams,
which are both toward the beginning of their
respective watersheds, are thus important in
fueling some of the dynamics in the tension
over water: Georgia against the other two
states; municipal uses of water against other
consumptive uses, particularly agricultural
irrigation; nonconsumptive uses such as recreation and navigation; and maintaining
habitat and water for fish and wildlife.
Although neither lake completely controls
its watershed, these operations have emerged
as flashpoints in the disputes among the
three states and affected stakeholders.
Further downstream, other dams the corps
operates form significant reservoirs and lakes.
In the ACT, these lakes include Carters
Lake, Logan Martin Lake, Weiss Lake and
Woodruff Lake. In the ACF, significant
lakes operated by the corps include West
Point Lake, Lake Seminole and the Walter F.
George Reservoir.
In addition to the corps, the Federal Energy
Regulatory Commission (FERC) has authority over all of the non-federally owned and
operated dams in the ACT and ACF basins.
Many of the dams are operated by Georgia
Power; some are municipally or otherwise
owned.
The Federal Power Act grants FERC the
authority to issue licenses for these nonfederal entities and licenses typically last for
50 years.
Many of the dams in both the ACT and
the ACF were built during the 1950s, so the
renewal of these licenses is about to become
an ongoing project.
The Federal Power Act dictates that FERC
consider a number of factors before issuing a
license or relicensing a project.
In recent years, FERC has imposed a
number of restrictions on dams around the
country for environmental reasons, such as
fishways and minimum flow requirements.
Some of these requirements have proven
too costly for the dam operators, and FERC
has required the dams to be removed.
Although none of these situations have
occurred in Georgia yet, the relicensing procedures could conceivably cause some dams
to be removed in this state.
In addition, FERC licenses are subject
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Background image: Panoramic view of Apalachicola Bay, Fla.
to section 401 of the federal Clean Water
Act. Section 401 requires that a licensee
receive certification from the affected state
for any discharge that occurs from a federally-approved or licensed project.
Without such certification, the federal
agency may not issue the required federal
license. The Supreme Court has affirmed
that states have wide latitude to place conditions on such certifications or to deny them
altogether.1
In addition to these specific provisions
of law that affect the federal agencies with
responsibility in the ACT and ACF basins,
more general provisions of environmental
law affect their decisions.
The two most important are the National
Environmental Policy Act (NEPA) and the
Endangered Species Act (ESA).
NEPA requires federal agencies to study
the environmental impacts of their actions
before undertaking them.
ESA requires federal agencies to consult
with the U.S. Fish and Wildlife Service or
the National Marine Fisheries Service (also
known as NOAA Fisheries) before undertaking any project that will jeopardize the
continued existence of an endangered or
threatened species or destroy or adversely
modify the critical habitat of such a species. In one famous case, the completion of
Tellico Dam in Tennessee was halted because
of the Endangered Species Act.
These acts apply to all federal activities
and any actions licensed or authorized by the
federal government.
Indeed, as will be seen, it was a lawsuit
brought to enforce the provisions of NEPA
that initially triggered the water war among
Georgia, Alabama and Florida.
How interstate water resources
are allocated
The U.S. Constitution recognizes three
means to allocate interstate water bodies.
The most prominent of these is a suit
before the U.S. Supreme Court for the equitable allocation of a water resource.
When one state believes that another has
wrongfully taken too much water from a
source, the adversely affected state may petition the Supreme Court to decide the matter.
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To merit review by the high court, the affected state must show that its interests have been
affected by clear and convincing evidence.
The Supreme Court has decided several
water disputes between and among states.
Typically, when the court agrees to hear such
a dispute, it will appoint a special master to
receive the facts of the case, ask the special
master to issue a report and recommendation, and then hear objections from the parties to that report and recommendation.
Unfortunately for the parties involved, the
law that governs these disputes is a muddle.
The Supreme Court has held that “equitable apportionment” means only that the
court’s apportionment “is based on broad
and flexible equitable concerns rather than
on precise legal entitlements.”2
The burden of proof rests on the petitioner, and that state will prevail only if it
can show harm by clear and convincing
evidence.
The court has announced the rule of equitable apportionment is one of federal common law, and it relies on state, federal and
international law as sources for the common
law rule it is developing.
In addition, most lawsuits for equitable
apportionment have arisen in the West,
where the rule of prior appropriation of
water controls.
Although the court has eschewed reliance
on that doctrine rigidly to determine interstate water disputes, it has recognized that
the doctrine will give it guidance.
In the East, where the rule of riparian rights reigns, no such clear rule governs
because of the nature of riparian rights as
being correlative and not fixed.
Indeed, the Supreme Court has really
decided only two interstate water allocation disputes from the East: Connecticut v.
Massachusetts and New Jersey v. New York.
Both cases were decided within a short
time of each other in 1931, and neither gives
firm guidance about what principles the
Supreme Court would apply to divide water
bodies between two states that adhere to the
riparian rights system.
In the first, the court simply held that
there was enough water in the disputed
resources to satisfy each state’s demands. In
the second, the court announced a division
of the water but did not give exact reasons
for its division.
Thus, even though the lawyers for each
of the three states in the ACT/ACF disputes
wanted to negotiate a settlement in light of
potential Supreme Court litigation, the rules
affecting those negotiations did not yield
many principles to help them.
The second means of allocating water
among states is a congressionally approved
interstate compact.
Interstate compacts are essentially treaties
between and among states, and Congress has
approved many of them to deal specifically
with water issues.
The three southeastern states actually
entered into two such compacts but, as
will be explained, ultimately the agreements
failed.
Nevertheless, if all affected states can reach
such a compact, it can clarify the issues of
resource allocation.
Indeed, in several instances, the Supreme
Court has suggested that the interstate compact is the means it prefers for interstate
water allocation over litigation, as interstate
compacts allow the parties flexibility and
direction that litigation in court cannot.
The third means of allocation of water
between and among states is by congressional act.
For example, the Supreme Court held
in one of the phases of the Arizona v.
California litigation – litigation that divided
the resources of the Colorado River – that an
act of Congress can amount to an allocation
of water, even though the record of congressional intent was not entirely clear.
Congress has, for many reasons, shown
reluctance to enter into this area deliberately
without the approval of the affected states
(through an interstate compact).
The reasons vary, but since the mid-1800s,
Congress has expressed a policy of deferring
to state water law on the allocation of this
resource.
In addition, congressional allocation
brings with it the attendant risks that always
come with a legislative solution to a problem – the horse-trading and log-rolling that
can occur during the drafting and amendSpring/Summer 2007
6/22/07 2:21:23 PM
ing of legislation.
The fact that
Florida alone has
more members in
the U.S. House of
Representatives than
Alabama and Georgia
together (25 vs. 20),
combined with the
political parties of
those representatives
and senators, only
complicates matters.
The recent turnover in the political leadership in
Congress, the potential for disputes within a single state’s delegation and the lack
of importance of the
issue to those outside of the state only
make the potential
outcome in Congress
even less predictable.
Map courtesy of the U.S. Fish and Wildlife Service – Georgia Ecological Services Office.
The tri-state water war begins
As suggested earlier, each of the three states
has different interests in the waters of the
ACT and ACF basins.
At the risk of caricature, and recognizing
that each state also has private and local
interests that may differ from the interest of
the state overall, the positions of the states
are as follows.
Alabama relies on the waters in the ACT
for recreation and the production of hydroelectricity.
Florida relies on the waters in the ACF primarily for in situ uses such as recreation (e.g.,
boating and fishing) and for maintaining the
environment of Apalachicola Bay, which is
a very productive and fertile marine estuary
environment and supports one of the largest
oyster harvests in the country.
As previously stated, Georgia has different
conflicts within itself over uses in both the
ACT and the ACF such as municipal water
supply and agricultural irrigation.
In addition to the need for Atlanta and
other burgeoning cities for water, water
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in the Flint River – which meets the
Chattahoochee River at Lake Seminole to
form the Apalachicola River – recharges
groundwater aquifers in South Georgia.
Unlike some other areas of the country,
farmers in South Georgia use groundwater
for irrigation, not surface water. Nevertheless,
ground water and surface water are interrelated, and groundwater withdrawals for
irrigation affect the level of water available in
the Flint River.
These tensions among the three states originally came to a head in a lawsuit brought not
as an original jurisdiction action against one
of the states against another, but as a lawsuit
that Alabama brought against the corps.
The suit alleged the corps had failed
to comply with NEPA adequately when
evaluating the environmental impacts of
a proposed water withdrawal by Georgia,
and it suggested the corps was exceeding its
authority by making a de facto allocation of
the water in the ACT basin. Georgia intervened in the lawsuit to protect its interests in
the water resources of the ACT.
The interesting features of the suit were:
1) that Alabama had
brought suit in district court (not the
Supreme Court) over
a dispute that essentially called upon the
court to allocate water
between two states;
2) that Georgia was
not originally a party
to the lawsuit; and 3)
that a federal statute
(NEPA) provided
the basis for the law
suit, not federal common law principles
of interstate resource
allocation.
It was this lawsuit,
eventually stayed,
that prompted the
parties to begin the
negotiations of the
interstate compacts.
During the pendency of those negotiations, the parties
agreed to hold the action in abeyance and
not to object to reasonable increases in water
consumption.
A cease-fire in the water war?
In 1997, the three states agreed to enter
into two interstate compacts, one for each
basin (although the relevant terms of the
compact were identical).
Unlike many compacts, however, this
compact had two significant and intertwined
differences.
First, the parties agreed only that they
would reach an agreement about water allocation in the future; the compacts did not
themselves establish a water allocation or
water master.
Second, the parties agreed that discussions
about water allocation would be subjected to
public notice, comment and involvement.
Many such negotiations between states
in the past have excluded the public from
involvement in discussions about how to
allocate natural resources. These three states
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committed themselves to conduct formal
sessions in public.
The governors served as the commissioners for the compacts, and the federal government also had a nonvoting representative for
each compact.
Negotiations continued throughout the
drought that affected the region in the late
1990s and through 2002.
One of the key stumbling blocks was the
insistence of Florida to have a minimum flow
of water in the Apalachicola at all times. The
exact level of this flow was one that Georgia
and Florida could not agree to, especially in
times of drought.
The presence of negotiations among the
states did not abate all of the litigation.
Indeed, in 2000, Georgia brought suit
against the corps for failing to act on its
permit application to increase water withdrawals.3
Nevertheless, the parties worked hard to
reach an agreement through the compact
process, extending it several times from the
original deadline.
Alabama and Georgia elected new governors who, it was thought, might make
headway in the negotiations.
Nevertheless, in 2002, the governor of
Florida announced that the state would
withdraw from the negotiation process.
Because no accord could be reached for
the ACF basin, negotiations over the ACT
basin ceased as well and the compacts expired
under their own terms.
Litigation that lower courts had, for the
most part, stayed then reignited.4
Where do we go from here?
The most interesting question facing the
three states in this battle is how to resolve it.
Often, especially with states that adhere
to the riparian rights doctrine, battles about
water allocation erupt when there is a
drought (as opposed to in the West, where
water shortages are more chronic).
Fortunately, water supply in the region
has remained fairly stable during the last
few years. Unfortunately, however, another
drought appears to be setting in this summer
and, as the Atlanta region continues to grow,
the overall demand for water will continue
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to grow as well.
The states face four choices.
The first is for one state – most likely
Florida or Alabama – to bite the bullet and
petition the U.S. Supreme Court in its original jurisdiction to make an allocation of the
water in these basins.
The standard for relief, however, is quite
high, and the law governing how the court
will make such an allocation is quite unclear.
Thus, a suit for equitable apportionment
will not necessarily benefit the petitioning
state or states.
Such a suit also may not include some
of the statutory qualifications on allocating water required by the panoply of federal laws affecting it (such as NEPA and the
Endangered Species Act).
Despite the predictions of some that the
dispute must make its way to the Supreme
Court, no state yet has been willing to
undertake that course of action, and each
state’s reluctance is understandable.
The second choice is for the states to
continue to battle each other through smaller skirmishes in the district and appellate
courts. These suits have prompted some
temporary settlements and offer more of a
chance for taking into account federal legal
developments.
On the down side, however, the lower
courts have thus far been careful to avoid
making any type of allocation of water and
thus appearing to interfere with the Supreme
Court’s exclusive jurisdiction over disputes
between states.
These ongoing battles have already raged
in different courts in different circuits, creating procedural nightmares from which only
lawyers will probably benefit.
The Judicial Panel on Multidistrict
Litigation has recently consolidated four
of the lower court cases involving the ACF
before one judge to make discovery and
pretrial rulings more efficient. These cases
were all transferred to the Middle District
of Florida, an area not directly implicated in
the ACF battle, and the MDL panel selected
Judge Paul Magnuson of Minnesota to serve
as the district court judge in the multidistrict
cases. Magnuson has experience with difficult interstate water battles, having served as
the district court judge with many disputes
over the allocation and use of the Missouri
River.
Third, the states could ask Congress to
make an allocation of the water. The recent
shift in the composition of the House and
Senate make this option undesirable for all of
the concerned states, as the outcome would
be especially unpredictable.
The best outcome, therefore, would be the
negotiation of a new interstate compact.
The affected states should revisit the old
compacts and review some of the key problems with them.
One may have been the presence of the
federal government as a nonvoting commissioner in both. The United States has more
of an interest in the waters of these basins
than as a neutral bystander: It operates
important reservoirs, it has expertise, and
it is subject to a variety of environmental
laws regardless of the underlying allocation
among the states.
The states should also consider the
appointment of river masters during the
pendency of such negotiations.
Merely agreeing to agree and not harm
each other creates poor incentives for each
of the states in terms of conservation and
proper use.
End Notes
1
S .D. Warren Co. v. Maine Board of Environmental
Protection, 126 S. Ct. 1843 (2006); PUD No. 1 of
Jefferson County v. Washington Department of Ecology,
511 U.S. 700 (1994).
2
Idaho
ex rel. Evans v. Oregon, 462 U.S. 1017, 1025
(1983); see also Nebraska v. Wyoming, 325 U.S. 589,
618 (1945) (apportionment decision includes “physical
and climatic conditions, the consumptive use of water
in the several sections of the river, the character and rate
of return flows, the extent of established uses, the availability of storage water, the practice effect of wasteful uses
on downstream areas, the damage to upstream areas as
compared to the benefits to downstream areas if a limitation is imposed on the former, [considerations that] are
all relevant [but not] an exhaustive catalogue”).
3
eorgia v. United States Army Corps of Engineers, 302
G
F.3d 1242 (11th Cir. 2002) (granting Florida [the]
right to intervene in lawsuit).
4
labama v. United States Army Corps of Engineers,
A
424 F.3d 1117 (11th Cir. 2005); Southeastern Federal
Power Customers v. Harvey, 400 F.3d 1 (D.C. Cir.
2005).
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